CARSTEN STAHN*

MARITAL STRESS OR GROUNDS FOR DIVORCE?

RE-THINKING THE RELATIONSHIP BETWEEN R2P

AND INTERNATIONAL CRIMINAL JUSTICE

ABSTRACT. This article analyzes the relationship between R2P and internationalcriminal justice. Both projects draw on similar foundations, such as �sovereignty as

responsibility’, a humanity-based defence of international authority and complemen-tarity-oriented response schemes to atrocity crimes. In past years, they have becomesubject to a number of common criticisms that are typical of other forms of interna-

tional humanitarianism: application of double standards, assertion of power under thelabel of human rights and communitarian conceptions of international society ormediation of victims without agency. This contribution draws on an analogy to family

law, namely idea of partnership and marriage, to analyze the status quo of the rela-tionship. It argues that the coupling of these two traditions has not received enoughattention in the emergence and treatment of R2P. It shows that it is a �marriage’ basedon pragmatism and without contract. It investigates existing discourse and interaction

problems. It claims that there is a need for greater distinction between R2P and in-ternational criminal justice, in order to respect their autonomy and mutual virtues.Integration and mainstreaming carries risks. Both strands of action share partly dif-

ferent goals and methodologies. None of the two should be viewed as a tool at theservice of the other. Instead, it is more helpful to develop interaction in specific areas.Synergies exist in relation to specific functions, such as atrocity alert, norm expres-

sivism and compliance. These communalities should be reinforced.

I INTRODUCTION

The Responsibility to Protect (R2P)1 exists for more than a decade.Since 2005 it is an official concept in United Nations doctrine.

* Professor of International Criminal Law and Global Justice, Leiden University.

This paper has been presented at the ESRC funded seminar on �The Responsibility toProtect and Prosecute: The International Criminal Court after Libya’, held at theUniversity of Leeds, on 24 April 2014. E-Mail: c.stahn@cdh.leidenuniv.nl.

1 The literature on R2P is rapidly growing. See e.g., G. Evans, The Responsibilityto Protect: Ending Mass Atrocity Crimes Once and For All (Washington, DC:

Criminal Law Forum (2015) 26:13–50 � The Author(s). This article is published with open access at Springerlink.com 2015

DOI 10.1007/s10609-015-9255-2

Opinions on the concept differ fundamentally. Some regard R2P as‘‘the most dramatic normative development of our time’’2 or a newgrundnorm of the international legal order (e.g., Dworkin,3 Peters4).Others caution against its ambivalence, problems and risks. Theimportance of R2P can be assessed by the number of critiques that ithas been exposed, which range from normative, conceptual and in-stitutional criticisms to Third World and gender based-strands of

Footnote 1 continuedBrookings Institution Press, 2008); A. J. Bellamy, The Responsibility to Protect: TheGlobal Effort to End Mass Atrocities (Cambridge: Polity Press, 2009); J. Pattison,Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?

(Oxford: Oxford University Press, 2010); A. Orford, International Authority and theResponsibility to Protect (Cambridge: Cambridge University Press, 2011); W. AndyKnight and Frazer Egerton (eds.), The Routledge Handbook of the Responsibility to

Protect (New York: Routledge, 2012); P. Cunliffe (ed.), Critical Perspectives on theResponsibility to Protect: Interrogating Theory and Practice (New York: Routledge,2011); Z. Genteri (ed.), An Institutional Approach to the Responsibility to Protect

(Cambridge: Cambridge University Press, 2013). See also C. Stahn, �Responsibilityto Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AmericanJournal of International Law 99; A. J. Bellamy, �The Responsibility to Protect—FiveYears On’ (2010) 24 Ethics & International Affairs 143–169; G. Evans, �The Re-

sponsibility to Protect: An Idea Whose Time Has Come . . . and Gone?’ (2008) 22International Relations 283–298; E. Strauss, �Bird in the Hand is Worth Two in theBush—On the Assumed Legal Nature of the Responsibility to Protect’ (2009) 1

Global Responsibility to Protect 291; L. Glanville, �The Antecedents of ‘‘Sovereigntyas Responsibility’’’ (2011) 17 European Journal of International Relations 233; D.Chandler, �Unravelling the Paradox of the Responsibility to Protect’ (2009) 20 Irish

Studies in International Affairs 27–39; F. Megret, �Beyond the �Salvation’ Paradigm:Responsibility To Protect (Others) vs the Power of Protecting Oneself’ (2009) 40Security Dialogue 575–585; E. C. Luck, �Building a Norm: The Responsibility to

Protect Experience’ in R. I. Rotberg (ed.), Mass Atrocity Crimes: Preventing FutureOutrages (Washington, DC: Brookings Institution Press, 2010) 108–127; E. C. Luck,�Sovereignty, Choice, and the Responsibility to Protect’ (2009) 1 Global Responsi-bility to Protect 10–21.

2 R. Thakur and T. G. Weiss, �R2P: From Idea to Norm – and Action?’ (2009) 1Global Responsibility to Protect 22.

3 See R. Dworkin, �A New Philosophy for International Law’ (2013) 41 Philosophy& Public Affairs 2–30.

4 A. Peters, �Humanity as the A and ¢X of Sovereignty’ (2009) 20 European Journalof International Law 513–544.

CARSTEN STAHN14

critique.5 Some have even proclaimed its alleged death as a functionalconcept, after Libya6 or in the face of inaction relating to Syria.7 Thesheer amount of discussion of the concept, its incremental applicationin UN practices (e.g., fact-finding, human rights) and policy, andattempts to improve its functioning (e.g., Responsibility While Pro-tecting), suggest that reports about the ‘‘death of R2P’’ are greatlyexaggerated.8 The discussion on R2P is sometimes reminiscent of theTower of Babel. Much of the controversy is rooted in different un-derstandings of the concept or focus on specific sites of debate.

In existing discourse, little attention has been devoted to some ofthe founding premises of the concept, namely the link between re-sponsibility under R2P and international criminal justice.9 R2P

5 For critiques of different aspects of R2P, see D. Chandler, �The Responsibility toProtect: Imposing the Liberal Peace’ (2004) 11 International Peacekeeping 59–81; id.,�R2P or Not R2P? More Statebuilding, Less Responsibility’ (2010) 2 Global Re-

sponsibility to Protect 161; A. Bellamy, �Responsibility to Protect or Trojan Horse?The Crisis in Darfur and Humanitarian Intervention after Iraq’ (2005) Ethics andInternational Affairs 31–53; C. Focarelli, �The Responsibility to Protect Doctrine andHumanitarian Intervention: Too Many Ambiguities for a Working Doctrine’ (2008)

13 Journal of Conflict and Security Law 191; M. Mamdani �Responsibility to Protector Right to Punish?’ (2010) 4 Journal of Intervention and Statebuilding 53–67; L. Halland L. J. Shepherd, �WPS and R2P: Theorising Responsibility and Protection’, in S.

E. Davies, Z. Nwokora, E. Stamnes and S. Teitt (eds.), The Responsibility to Protectand Women, Peace and Security (Leiden: Brill, 2013) 53–80; R. Paris, �The ‘‘Re-sponsibility to Protect’’ and the Structural Problems of Preventive Humanitarian

Intervention’ (2014) 21 International Peacekeeping 569–603.6 See D. Rieff, �R2P, R.I.P.’, New York Times, 7 November 2911, at

http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?pagewanted=all&_r=0.7 M. Newton, �R2P is dead and done’ due to response to Syria’, 16 September

2013, at http://www.vanderbilt.edu/jotl/2013/09/newton-%E2%80%9Cr2p-is-dead-

and-done%E2%80%9D-because-of-response-to-syria/.8 For a discussion, see C. Stahn and C. Harwood, �Why Reports about the ’Death

of R2P’ May be Premature: Links between the Responsibility to Protect and Human

Rights Fact-Finding’ (2014) 3 ESIL Reflection, at http://www.esil-sedi.eu/fr/node/608.

9 For an exception, see F. Megret, �ICC, R2P, and the International Community’sEvolving Interventionist Toolkit’ (2010) 21 Finnish Yearbook of International Law21–51; S. Nouwen, �Complementarity in Practice: Critical Lessons from the ICC forR2P’ (2010) 21 Finnish Yearbook of International Law 53–64; M. Kersten, �A Fatal

Attraction? The UN Security Council and the Relationship between R2P and theInternational Criminal Court’, in J. Handmaker and K. Arts (eds.), InternationalLaw and the Politics of Justice (Cambridge: Cambridge University Press, forth-

coming); E. F. Defeis, �The Responsibility to Protect and International Justice’(2011) 10 Hofstra Journal of International Business and Law 91.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

emerged in the tradition of just war theory and intervention.10 One ofits trademarks is its mix of moral duties and interventionist responseschemes with notions of international criminal justice.11 R2P hassynergies with principles of protection and humanitarian action12. Itis built on ideas of prevention, protection and remedial response thatare typical of humanitarian action.13 The underlying principles donot necessarily coincide with goals of international justice. Interna-tional criminal justice is sometimes associated with a claim to rep-resent humanity.14 But imperatives of neutrality and purposes ofprotection of victims are at best secondary considerations. Justiceintervention is guided by particular objectives, such as the determi-nation of accountability and the independence of justice (e.g.,prosecutorial and judicial independence). It involves different goalsand prioritizations than human rights advocacy or humanitarianrelief (e.g., allocation of individual criminal responsibility, due pro-cess protection etc.). It is typically perpetrator-centred, rather thanvictim-focused, and targeted in focus. In the World Summit OutcomeDocument, the two projects have been paired with each otherthrough the focus on atrocity crimes, without deeper reflection on themerger of these distinct traditions.15

10 See International Commission on Intervention and State Sovereignty, TheResponsibility to Protect (Ottawa: International Development Research Centre,

2001), at http://responsibilitytoprotect.org/ICISS%20Report.pdf (hereinafter ICISSReport).

11 See ICISS Report, paras. 4.18–4.43 (relying on just war theory criteria, such as

‘‘just cause’’ and ‘‘right intent’’).12 Humanitarian action is generally associated with the principles of humanity,

impartiality and neutrality. See H. Haider, International Legal Frameworks for Hu-manitarian Action: Topic Guide (Birmingham, UK: GSDRC, University of Birm-ingham, 2013), at 6.

13 See e.g., �ICRC Protection Policy: Institutional Policy’ (2008) 90 IRRC 751, 759.14 See the preamble of the ICC Statute, which speaks of crime that that shock

�conscience of mankind’. See also generally J. Hoover, �Moral Practices: AssigningResponsibility in the International Criminal Court’ (2013) 76 Law and ContemporaryProblems 263, 285; R. Teitel, Humanity’s Law (New York: Oxford University Press,

2011).15 See UNGA, �World Summit Outcome Document’ (2005) UN Doc. A/RES/60/

1, para. 138. See also J. E. Alvarez, �The Schizophrenias of R2P’ in P. Alston and

E. Macdonald (eds.), Human Rights, Intervention, and the Use of Force (Oxford:Oxford University Press, 2008) 276.

CARSTEN STAHN16

The reasons for this merger are both, functional and emotive.They go beyond rational choice or realpolitics. International criminaljustice provides a strategy and language that is appealing to the en-forcement of R2P. It offers the doctrine a normative grounding in lawthat mitigates biases against R2P. The use of criminal law semanticsshifts the focus from subjective moral and political choices to uni-versally defensible interests. Moreover, it strengthens the very as-sumption that R2P entails a legal nucleus. But a too close alignmentmay actually compromise the cause and perception of justice. Thishas become evident over past years. In the eyes of those affected byintervention, R2P and international criminal justice have becomevulnerable to some of the same types of criticism that have voicedagainst coercive forms of transformative humanitarianism over dec-ades: selectivity and application of �double standards’, creation ofnew types of �victimhood’ without agency, and empowerment of in-ternational authority under the guise of human rights.16

This contribution draws on a family law analogy, namely the ideaof partnership and marriage, to analyze the status quo of the rela-tionship.17 It argues that the coupling of these two traditions has notreceived enough attention in the emergence and treatment of R2P. Itfirst examines the emergence of the relationship. It argues that it wasa marriage out of pragmatism and moral appeal. It then analyzes thepremises of the relationship, i.e. assumptions regarding the roles ofthe partners. It investigate existing discourse and interaction. Basedon this, it inquires to what extent these relational problems provide aground for divorce, as argued by some (e.g., Chandler18) or a causefor mutual �duties of care’.

16 For a powerful R2P critique, see A. Branch, �The Irresponsibility of the Re-

sponsibility to Protect in Africa’, in Cunliffe (n 1 above), 103, 115. See also P.Cunliffe, �Dangerous Duties: Power, Paternalism and the �Responsibility to Protect’’(2010) 36 Review of International Studies 79. For an ICC critique, see P. McAuliffe,

�From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism’ (2014) 13 ChineseJournal of International Law 259.

17 Megret speaks of international criminal justice as a �responsible partner’ of R2P.Megret (n 9 above) at 29.

18 See D. Chandler, �Born Posthumously: Re-Thinking the Shared Characteristicsof the ICC and R2P’ (2010) 21 Finnish Yearbook of International Law 1–9.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

II A MARRIAGE OUT OF PRAGMATISM AND MORALAPPEAL

At the outset, it is useful to look back at the mating phase, i.e. thebeginning of the affair. Both international criminal justice and R2Pare modern articulations of ideas that have been inherent in inter-national law for centuries. Both of them gained acceptance becausethey combined claims for a �relative’ understanding of statesovereignty with re-affirmations of state power, or even �deference tosovereignty’.19 The formation of R2P was visibly driven by gradualshifts away from �rights-based’ approaches towards intervention20

and growing enthusiasm over the nexus between peace, justice andhuman rights at the end of the 1990s.21 Originally, there were dif-ferent conceptions of R2P. The atrocity-crime based vision gainedacceptance in UN negotiations in 2005. It was assumed that R2P andinternational criminal justice share sufficient identity features to beconnected. The contours, limits and risks of that relationship receivedlimited attention.

2.1 Diverse Identities

R2P and international criminal justice share synergies. They arenormative projects with certain protective and behavioral purposes.They fit partly within a strand of transformative humanitarianismthat has gained ground over the past century.22 They both set out to

19 Megret (n 9 above), at 36. This is reflected in the primary responsibility of Statesunder para. 138 of the World Summit Outcome Document and the complementarity

regime of the ICC. For an understanding of complementarity as responsibility, see C.Stahn, �Taking Complementarity Seriously: On the Sense and Sensibility of ‘‘Clas-sical’’, ‘‘Positive’’ and ‘‘Negative’’ Complementarity’, in C. Stahn and M. El Zeidy

(eds.), The International Criminal Court and Complementarity: From Theory toPractice (Cambridge University Press, 2011) 233–281.

20 Rights-based approaches towards humanitarian action became a prominent

feature in the 1980’s with the invocation of the ‘‘droit d’ingerence’’ by NGOs in theBiafra crisis. See D. Chandler, �The Road to Military Humanitarianism: How theHuman Rights NGOs Shaped A New Humanitarian Agenda’ (2001) 23 Human

Rights Quarterly 678–700.21 See also Chandler (n 18 above), at 6 (‘‘they were seen to be symbols of the global

cosmopolitan order of liberal rights and justice, which the 1990s appeared to pro-mise’’). For a critique, see also M Koskenniemi, �Human Rights Mainstreaming as aStrategy for Institutional Power’ (2010) 1 Humanity 47–58.

22 There are different strands of humanitarianism, the classical �samaritan’ modelassociated with the humanitarian movement (based on humanity, neutrality, im-

CARSTEN STAHN18

protect victims from harm. They ultimately seek to promote re-sponsible use of sovereign power by governments.23 Moreover, theycoincide in their ambition to outlaw and ban intolerable humanconduct, through prevention and attribution of responsibility foraction or inaction.

The rapid growth and practice of international criminal justiceover the past decades has provided a normative impetus for the de-velopment of R2P.24 But the deeper question to what extent inter-national criminal justice and R2P actually share commoncharacteristics has not been explored in any great depth. The twoprojects enjoy separate identities.

R2P is an umbrella concept. It draws on ideas and influences fromdifferent areas. The main idea of �sovereignty as responsibility’ isgrounded in human rights and duty-based conceptions of State au-thority. The response scheme (i.e. remedying suffering of others) isinfluenced by just war theory and the humanitarian tradition. Theremedial component (e.g., prevention and reaction, with an aversiontowards unilateralism) is strongly rooted in international institu-tionalism and the cosmopolitan tradition.25 Each of these dimensionshas a certain grounding in international law. The claim that sovereignauthority is answerable internally is rooted in human rights law andstandards of democratic governance. The idea that violations ofduties entail external responsibility is grounded in the law of State

Footnote 22 continuedpartiality), and a more (human rights) driven form which is in essence �transfor-mative’ in nature. The dilemma of the latter is that it requires a fundamental re-

definition of humanitarian principles. See generally M. Barnett, Empire of Humanity:a History of Humanitarianism (Ithaca and London: Cornell University Press, 2011).The ICC bears traces of this. The �samaritan’ analogy does not work fully since ICC

engagement is party- and interest driven. Victim protection and participation is tiedto the case/situation shaped by the OTP. ICC action fits partly within the tradition oftransformative humanitarianism and its dilemmas which require justification (e.g.,based on acceptance of authority, expert knowledge, accountability etc.).

23 See also Megret, who qualifies R2P and the ICC as ‘‘projects of making goodsovereigns’’. Megret (n 9 above), at 38.

24 D. Scheffer, �Atrocity Crimes: Framing the Responsibility to Protect’, in R.H. Cooper and J. V. Kohler (eds.), Responsibility to Protect: The Global MoralCompact for the 21st Century (New York: Palgrave MacMillan, 2009) 77–98, 80–81.

25 On the diverse nature of R2P, see Alvarez (n 15 above).

MARITAL STRESS OR GROUNDS FOR DIVORCE?

responsibility, humanitarian duties26 and concepts of solidarity andcare.27 Specific response schemes, such as prevention and reaction,can be traced back to specific treaty regimes (e.g., Genocide Con-vention28), Charter mechanisms and limits to non-intervention (e.g.,peace and security under the UN Charter, African Union). Con-straints may be derived from jus ad bellum and jus in bello (e.g.,proportionality, principle of distinction).

Modern international criminal justice emerged in the tradition ofpeace-maintenance. But it shares distinct normative premises. Itprotects specific human rights (e.g., defendants’ rights) and pays in-creasingly tribute to victims. It is less concerned with the idea of Stateresponsibility for violations or State �failure’. It has typically foughtfor the emancipation of individual criminal responsibility from theresponsibility of the State, as reflected in the (too often repeated, yetcontinuously valid) Nuremberg dictum that ‘‘crimes are committed bymen, not by abstract entities’’).29 It captures only a fraction of humanrights and humanitarian violations. It has become increasingly hostileto the idea of enforcing accountability through coercive action. Itserves as a disincentive to intervention through growing criminal-ization of unlawful uses of force (e.g., the crime of aggression).30

26 For instance, the Hague Regulations, Geneva Conventions and Additional

Protocols establish obligations, responsibility and legal accountability for actionsand omissions, and non-interventionist aspects of prevention.

27 On the duty of care, see e.g., L. Arbour, �The Responsibility to Protect as a

Duty of Care in International Law and Practice’ (2008) 34 Review of InternationalStudies 445–458, 445. On solidarity, see ILC, Second report on the protection ofpersons in the event of disasters, A/CN.4/615, 7 May 2009, para. 54, (‘‘Solidarity as

an international legal principle, and distinct from charity, gives rise to a system ofcooperation in furtherance of the notion that justice and the common good are bestserved by policies that benefit all nations’’).

28 See ICJ, Application of the Convention on the Prevention and Punishment of theCrime of Genocide (Bosnia and Herzegovina v Serbia) (Merits), 26 February 2007,para. 430.

29 International Military Tribunal, France et al. v. Goering t al., (1946) 22 IMT411, 466.

30 On aggression, see L. May, Aggression and Crimes Against Peace (Cambridge:Cambridge University Press, 2008); K. Sellars, �Crimes against Peace’ and Interna-tional Law (Cambridge: Cambridge University Press, 2013); C. McDougall, The

Crime of Aggression under the Rome Statute of the International Criminal Court(Cambridge: Cambridge University Press, 2013); K. Ambos, �The Crime of Ag-gression after Kampala’ (2010) 53 German Yearbook of International Law 463–509;

C. Kreß and L. von Holtzendorff, �The Kampala Compromise on the Crime ofAggression’ (2010) 8 Journal of International Criminal Justice 1179.

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Moreover, it tends to stress the autonomy of justice responses fromother response schemes, i.e. through its emphasis on judicial andprosecutorial independence. These differences become ever moreaware, as R2P and international criminal justice are coming of age.

2.2 An Arranged Marriage

The idea to merge international criminal justice and R2P was notinherent in the concept. It was arranged. It emerged in the context ofthe negotiating history of the concept.

The first instrument, i.e. the Report of the Commission on StateSovereignty and Intervention (ICISS Report) sought to identifyguidelines for intervention. It contained only marginal references tointernational criminal justice. It defended a broad conception of R2P.It contained a broad understanding of ‘‘just causes’’ for intervention,focused on ‘‘conscience-shocking situation[s]’’.31 The Commissionplaced the emphasis on ‘‘protection needs’’. It linked human pro-tection in situations of civil wars, insurgencies, state repression andstate collapse. It identified ‘‘two broad sets of circumstances’’, whereR2P comes into play, namely:

large scale loss of life, actual or apprehended, with genocidal intent or not, which is

the product either of deliberate state action, or state neglect or inability to act, or afailed state situation; or

large scale ‘‘ethnic cleansing,’’ actual or apprehended, whether carried out by killing,

forced expulsion, acts of terror or rape.32

The Commission drew no distinction between circumstances causedby State action or action by non-state actors.33 It specified that R2Pcould be triggered by natural disasters and non-man made causes,such as

overwhelming natural or environmental catastrophes, where the state concerned iseither unwilling or unable to cope, or call for assistance, and significant loss of life isoccurring or threatened.34

31 ICISS Report, para. 4.20.32 ICISS Report, para. 419.33 It argued that ‘‘when it comes to the threshold ‘‘just cause’’ issue of determining

whether the circumstances are grave enough to justify intervention, it makes no basicmoral difference whether it is state or non-state actors who are putting people atrisk’’. ICISS Report, para. 4.22.

34 ICISS Report, para. 4.20.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

It took into account the nexus of protection to socio-economic rights,such as access to food, employment and environmental security.35

The Commission grounded this understanding in three differentconsiderations:

(i) The limits to the principle of �non-intervention’ under the UNCharter36;

(ii) ‘‘standards of conduct for states in the protection and ad-vancement of international human rights’’37; and

(iii) the idea of ‘‘universal justice’’ (or ‘‘justice without borders’’),i.e. the ‘‘transition from a culture of sovereign impunity to aculture of national and international accountability’’.38

The scope of application of R2P was limited in the process of UNnegotiations. The Report of the High Level Panel on Threats,Challenges and Change connected the concept to UN responseschemes and existing practice. It excluded natural disasters focusedon ‘‘man –made catastrophes’’,39 in line with the ‘‘human security’’focus of the Security Council in situations, such as ‘‘Somalia, Bosniaand Herzegovina, Rwanda, Kosovo and … Darfur, Sudan’’.40 Itplaced the emphasis on ‘‘deliberate action’’ and what it termed‘‘avoidable catastrophe’’. It recognized the

responsibility to protect’’ of every State when it comes to people suffering fromavoidable catastrophe – mass murder and rape, ethnic cleansing by forcible expulsion

and terror, and deliberate starvation and exposure to disease.41

It focused the trigger of R2P on human atrocities, namely:

35 Ibid., para. 2.22 (‘‘One of the virtues of expressing the key issue … as ‘‘theresponsibility to protect’’ is that it focuses attention where it should be most con-

centrated, on the human needs of those seeking protection or assistance. The em-phasis in the security debate shifts, with this focus, from territorial security, andsecurity through armaments, to security through human development with access tofood and employment, and to environmental security.’’)

36 Ibid., paras. 2.7–2.10.37 Ibid., paras. 2.16 and 2.17.38 Ibid., paras. 2.18–2.20.39 UN High-Level Panel on Threats, Challenges and Change: �A more Secure

World: Our Shared Responsibility’, Un. Doc. A/59/565 (2004), para. 199.40 Ibid., para. 201.41 Ibid.

CARSTEN STAHN22

genocide and other large-scale killing, ethnic cleansing or serious violations of in-ternational humanitarian law which sovereign Governments have proved powerlessor unwilling to prevent.42

The move towards identifiable violations was tied to exceptions to theprinciple of non-intervention in UN practice. The Panel noted:

The principle of non-intervention in internal affairs cannot be used to protectgenocidal acts or other atrocities, such as large-scale violations of international

humanitarian law or large-scale ethnic cleansing, which can properly be considered athreat to international security and as such provoke action by the Security Council.43

This language was further modified in the World Summit OutcomeDocument. It tied the trigger of R2P expressly to accepted labels of‘‘crimes’’. Paragraph 138 states that ‘‘each individual State has theresponsibility to protect its populations from genocide, war crimes,ethnic cleansing and crimes against humanity’’.44 This framing placedthe focus on protection of civilians from specific crimes. Response tonatural disasters was discussed outside the ambit of R2P.

The Secretary-General defended the move towards a ‘‘justice-oriented’’ trigger as follows:

To try to extend it to cover other calamities, such as HIV/AIDS, climate change or

the response to natural disasters, would undermine the 2005 consensus and stretchthe concept beyond recognition or operational utility.45

This approach was later partially confirmed in the ILC Draft Articleson Protection of Persons in the Event of Natural Disasters whichbuild on elements of R2P but omit an express reference to the con-cept.46

42 Ibid., para. 203.43 Ibid., para. 200.44 See para. 138 of the World Summit Outcome Document.45 Report of the Secretary-General, �Implementing the responsibility to protect’,

UN. Doc A/63/677, 12 January 2009, para. 10 (b).46 See ILC Report on the Work of its 61st Session, UN. Doc, A/64/10, para. 164

(‘‘Agreement was expressed with the Special Rapporteur’s conclusions on the non-applicability of the concept of responsibility to protect, although some expressed the

view that any such decision by the Commission should not prejudice the possiblerelevance of the concept in the future’’). See also ILC, Second report on the pro-tection of persons in the event of disasters, A/CN.4/615, 7 May 2009, para. 8 (‘‘a

rights-based approach to the topic was supported by various delegations, while someexpressed doubts as to whether such was the correct path to be followed in this case.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

The choice may be explained by a number of pragmatic consid-erations.47 The ‘‘atrocity-crime’’ based trigger has appeal since it isneither ‘‘too high’’ nor to ‘‘too low’’.48 It reflects a strategic choice tokeep the scope of R2P narrow at the outset, in particular due to itsnexus to exemptions from non-intervention.49 It provides a ‘‘tangiblethreshold’’ for action.50 It ties response schemes to widespread vio-lence and civil unrest, in particular ‘‘the deliberate targeting ofspecific groups, communities or populations […] and sometimes cy-cles of reaction and counter-reaction between communities’’.51 Therequirement of ‘‘manifest failure’’ in paragraph 139 raises thethreshold for ‘‘outside invention’’. Some argue that this framing isdeemed to exclude small-scale war crimes, or even ‘‘slow-motion’’crimes against humanity, such as institutionalized apartheid, disap-pearances and sexual violence, which may occur without widespreadconflict and internal disruption.52 The existing formulation further

Footnote 46 continued

Similarly, while the relevance of a ‘‘responsibility to protect’’ still remained unclearfor several delegations, some delegations considered that the Commission should notfind itself prevented from considering that notion, should the logic of its undertaking

propel it in that direction’’). For a discussion, see T. Allan and T. O’Donnell, �A Callto Alms?: Natural Disasters, R2P, Duties of Cooperation and Uncharted Conse-quences’ (2012) 17 Journal of Conflict & Security Law 337. See also generally G.Evans, �The Responsibility to Protect in Environmental Emergencies’ (2009) 103

Proceedings of the 103rd Annual Meeting of the American Society ofInternational Law27–32; A. McLachlan-Bent and J. Langmore, �A Crime against Humanity? Impli-cations and Prospects of the Responsibility to Protect in the Wake of Cyclone

Nargis’ (2011) 3 Global Responsibility to Protect 37.47 For a discussion, see D. Scheffer, �Atrocity Crimes: Framing the Responsibility

to Protect’ (2007–2008) 40 Case Western Reserve Journal of International Law 111.48 See also Megret (n 9 above), at 31.49 Report of the Secretary-General, �Implementing the responsibility to protect’ (n

45 above), para. 10 (c) (‘‘While the scope should be kept narrow, the response oughtto be deep’’).

50 Note that crimes trigger leaves uncertainties. There are, for instance, significantdisputes over the reach of crimes against humanity. See e.g., C. Kress, �On the OuterLimits of Crimes against Humanity: The Concept of Organization within the Policy

Requirement: Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23Leiden Journal of International Law 855; T. Rodenhauser, �Beyond State Crimes:Non-State Entities and Crimes Against Humanity’ (2014) 27 Leiden Journal of In-

ternational Law 913.51 See Report of the Secretary-General, �Responsibility to protect: State respon-

sibility and prevention’, UN. Doc. A/67/929–S/2013/399, 9 July 2013, para 12.52 Scheffer (n 24 above), 86–92.

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enhances the normative force of R2P. It grounds it in precedent, suchas the ‘‘right’’ of the African Union ‘‘to intervene … in respect tograve circumstances, namely: war crimes, genocide, and crimesagainst humanity’’.53 This is deemed to mitigate (neo-)imperial cri-tiques of R2P.

These pragmatic reasons are complemented by other grounds thatgo beyond rational choice. The �crime-based’ trigger has emotionalattraction since it limits moral opposition to R2P. The label of�atrocity crimes’ (e.g., genocide, crimes against humanity, ethniccleansing) is associated with a social stigma that makes it harder tooppose its invocation. It embraces conduct that impossible to justifyin situations of conflict. As Secretary-General Ban Ki Moon put it in2009,

…no community, society, or culture publicly and officially condones genocide, war

crimes, ethnic cleansing or crimes against humanity as acceptable behaviour.54

Moreover, the crime-label has attraction since it provides a legalbacking against political and moral challenges to R2P. Linking theconcept to the duty to investigate and prosecute under internationallaw tempers the space of the �political’ in human security responses.55

It frames R2P action as a matter of necessity, rather than an act ofchoice.

2.3 The ‘‘Honeymoon’’ Period

The relationship between R2P and international criminal justice wasclarified in the aftermath of the 2005 World Summit OutcomeDocument. The 2009 Report of the Secretary-General on �Imple-menting the Responsibility to Protect’ set out what one might call thehoneymoon period in the newly formed relationship.

53 Art 4 of Article 4 of the Constitutive Act of the African Union provides for:‘‘(h) the right of the Union to intervene in a Member State pursuant to a decision ofthe Assembly in respect of grave circumstances, namely: war crimes, genocide and

crimes against humanity’’. For a study, see D. Kuwali, The Responsibility to Protect:Implementation of Article 4(h) Intervention (Leiden: Brill, 2011).

54 Report of the Secretary-General, �Implementing the responsibility to protect’, (n43 above), para. 20.

55 On the space of the �political’ in international criminnal justice, see W. Werner

and S. Nouwen, �Doing Justice to the Political: The International Criminal Court inUganda and Sudan’ (2010) 21 EJIL 941.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

The report arranged the current pillar structure of R2P and shiftedthe emphasis from coercive intervention to prevention and othersofter institutional responses to crisis within the UN system. Itclaimed that R2P ‘‘seeks to strengthen sovereignty, not weaken it’’and ‘‘help States to succeed, not just to react when they fail’’.56

The report grounded essential elements of R2P in law, rather thanpolitics. It noted that ‘‘provisions of paragraphs 138 and 139 of theSummit Outcome are firmly anchored in well-established principles ofinternational law’’.57 It stressed the mutually reinforcing nature ofR2P and international criminal justice. It argued that R2P providesconditions that facilitate a better enforcement of international crim-inal justice. It claimed that causes of mass atrocities can be mitigatedthrough international institutional responses, such as ‘‘preventivediplomacy’’ or ‘‘capacity-building’’.

This institutional logic and its confidence in the conflict resolutionpotential of UN mechanisms is reflected in the statement that:

[g]enocide and other crimes relating to the responsibility to protect do not justhappen. They are, more often than not, the result of a deliberate and calculatedpolitical choice, and of the decisions and actions of political leaders who are all too

ready to take advantage of existing social divisions and institutional failures …Theyare neither inevitable nor unavoidable.58

The report applied this functionalist approach to internationalcriminal justice. It openly characterized international justice as a toolfor implementing the goals of R2P. It branded the Rome Statuteexpressly as ‘‘one of the key instruments relating to the responsibilityto protect’’.59 It recognized the preventive function of internationalcriminal courts and tribunals. It notes:

By seeking to end impunity, the International Criminal Court and the United Na-tions-assisted tribunals have added an essential tool for implementing the responsi-bility to protect, one that is already reinforcing efforts at dissuasion and deterrence.60

56 Report of the Secretary-General, �Implementing the responsibility to protect’,(n 45 above), para 10.

57 Ibid., para. 3.58 Ibid., para. 21.59 Ibid., para. 19.60 Ibid., para. 18.

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It then identified different means and strategies through internationalcriminal justice may strengthen R2P. It makes reference to (i) theprinciple of complementarity, in particular the role of ‘‘national ju-dicial processes’’ as ‘‘the first line of defence against impunity’’,61 (ii)the need for national implementing legislation, in order to ensure‘‘that the four specified crimes and violations and their incitement arecriminalized under domestic law and practice’’62 and (iii) the role ofpreventive diplomacy, i.e. calls to hold ‘‘political and communityleaders … accountable for violations of international law’’ at ‘‘theirinstigation’’.63

The report transformed R2P from a humanitarian doctrine into aconflict resolution technique. It linked the operationalization of R2Pexpressly to strategies of ‘‘capacity-building’’. It noted that:

Responsible sovereignty … entails the building of institutions, capacities and prac-

tices for the constructive management of the tensions so often associated with theuneven growth or rapidly changing circumstances that appear to benefit some groupsmore than others.64

This framing resonated well with existing weaknesses of internationalcriminal justice. International criminal justice has suffered from se-lectivity problems and enforcement gaps since it its inception. It hasbeen in search of an overarching theory that bolsters its moral au-thority and increases pressure for compliance of States. R2P offered anew prospect to mitigate those dilemmas.

The managerial approach to justice coincided with the increasingfocus on deferral of international authority and strengthening ofdomestic jurisdiction in the context of the completion strategy of thead hoc tribunals.65 The protective function of R2P provided authorityfor an increased focus on outreach, capacity-building and restorativeapproaches to victims in the activities of the tribunals.66 It allowed

61 Ibid., para. 19.62 Ibid., para. 17.63 Ibid., para. 55.64 Ibid., para. 14.65 See D. Raab, �Evaluating the ICTY and its Completion Strategy: Efforts to

Achieve Accountability for War Crimes and their Tribunals’ (2005) 3 JICJ 82; K.

J. Heller, �Completion’ in L. Reydams, J. Wouter and C. Ryngaert (eds.), Interna-tional Prosecutors (Oxford: Oxford University Press, 2012) 886.

66 In the ICC context, this is reflected in the idea of the Trust Fund for Victims. On

resources, see M. Wierda and A. Triolo, �Resources’, in Reydams, Wouter andRyngaert (eds.), (n 63 above), 113. For a discussion of outreach, see J. N. Clark,

MARITAL STRESS OR GROUNDS FOR DIVORCE?

the tribunals to claim vis-a-vis the UN that these areas form part ofthe inherent mandate of international criminal jurisdictions.67

The conception of R2P presented in the report also strengthenedstrategies developed in the first practice of the ICC. Due to its strongdependence on States in relation to jurisdiction, cooperation and evi-dence, the Court has been described as a ‘‘giant without legs’’ since itsinception.68 This challenge has prompted a need for institutional cre-ativity and a search for new approaches to make the ICC relevant ininternational relations. It resulted in a number of innovations: (i) thedevelopment of new alert functions, i.e. the use of preliminary ex-aminationas a tool to flagviolations andmobilize international action,69

(ii) the increased emphasis onnational responsibility70 and (iii) thedesignof strategies to act ‘‘in partnership’’ with States and encourage domestic

Footnote 66 continuedaInternational War Crimes Tribunals and the Challenge of Outreach’ (2009) Inter-

national Criminal Law Review 99; R. Hodzic, �Living the Legacy of Mass Atrocities:Victims’ Perspectives on War Crimes Trials’ (2010) 8 JICJ 113. For a study ofcapacity building, see E. Baylis, �Reassessing the Role of International Criminal Law:

Rebuilding National Courts Through Transnational Networks’ (2009) 50 BostonCollege Law Review 1; D. Tolbert and A. Kontic, �The International Criminal Tri-bunal for the former Yugoslavia: Transitional Justice, the Transfer of Cases and

Lessons for the ICC’, in C. Stahn and G. Sluiter (eds.), The Emerging Practice of theInternational Criminal Court (Leiden: Brill, 2009) 135–162; M. Bergsmo, O. Bekou &A. Jones, �Complementarity After Kampala: Capacity Building and the ICC’s LegalTools’ (2010) 2 Goettingen Journal of International Law 791.

67 For a skeptical take, see R. Zacklin, �The Failings of Ad Hoc InternationalTribunals’ (2994) 2 JICJ 541.

68 On the origin of the image, see A. Cassese, �On the Current Trends towardsCriminal Prosecution and Punishment of Breaches of International HumanitarianLaw’ (1998) 9 EJIL 13.

69 OTP, Policy Paper on Preliminary Examinations, November 2013, at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/

OTP%20Preliminary%20Examinations/OTP%20-%20Policy%20Paper%20Preliminary%20Examinations%20%202013.pdf. For analysis, see P. Seils, �Making Complemen-tarity Work: Maximizing the Limited Role of the Prosecutor’, in Stahn and El Zeidy

(eds.), (n 18 above) 989–1013.70 Para. 1 of the Kampala Review Conference Resolution on complementarity

�[r]ecognizes the primary responsibility of States to investigate and prosecute the

most serious crimes of international concern’. See Resolution RC/Res.1, 8 June 2010,para. 1.

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investigation and prosecution (‘‘positive complementarity’’, ‘‘reversecooperation’’71). These strategies were set out in the Report on Prose-cutorial Strategy (2009–2012) which stated that ‘‘much of thework doneto achieve the goals of the Statute may take place in national judiciaryaround theworld’’,while cautioning that ‘‘thenumberof cases that reachthe Court is not a positive measure of effectiveness’’.72

R2P provided to some extent the missing piece in the constructionof complementarity. The Rome Statute operates on the implicit as-sumption that states have a duty to investigate and prosecute.73 But itfailed to spell out the origin of this obligation and a duty to imple-ment core crimes.74 The articulation of R2P filled this authority gap,through its principled recognition of the duty to prevent and punishand the role of domestic jurisdiction as ‘‘first port of entry’’ (para.138). The response options under R2P (para. 139) provided addi-tional leverage to use complementarity as a ‘‘catalyst for compliance’’in ICC strategy.75 The �assistance’ pillar of R2P provided additionalauthority to strengthen the importance of domestication of ICCnorms and procedures76 and to defend a nexus between the ICC anddevelopment strategies.77

71 See OTP, Informal expert paper, �The principle of complementarity in practice’(2003), paras. 7–15, at http://www.iclklamberg.com/Caselaw/OTP/Informal%20Expert%20paper%20The%20principle%20of%20complementarity%20in%20practice.pdf. On �reverse cooperation’, see F. Gioia, �Complementarity and ‘‘Reverse Coop-

eration’’’, in Stahn and El Zeidy (eds.), (n 19 above) 807–828.72 See OTP, Prosecutorial Strategy 2009–2012, 1 February 2010, para. 79, paras.

16–17, at http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf.

73 See 6th preambular paragraph of the ICC Statute, ‘‘[r]ecalling that it is the duty

of every State to exercise its criminal jurisdiction over those responsible for inter-national crimes’’.

74 An express duty exists only in relation to cooperation. See Art. 88 of the ICCStatute (‘‘States Parties shall ensure that there are procedures available under theirnational law for all of the forms of cooperation which are specified under this Part’’).

75 See generally J. K. Kleffner, Complementarity in the Rome Statute and NationalCriminal Jurisdictions (Oxford: Oxford University Press, 2008) Chapter 7.

76 See Report of the Secretary-General, Implementing the Responsibility to Pro-tect, (n 45 above), para. 44 (‘‘What is most needed, from the perspective of theresponsibility to protect, are assistance programmes that are carefully targeted to

build specific capacities within societies that would make them less likely to travel thepath to crimes relating to the responsibility to protect’’).

77 For a critical account, see S. Kendall, �Donors’ Justice: Recasting International

Criminal Accountability’ (2011) 24 LJIL 585. On development and transitionaljustice, see R. Duthie, ’Towards a Development-sensitive Approach to Transitional

MARITAL STRESS OR GROUNDS FOR DIVORCE?

III A MARRIAGE WITHOUT CONTRACT

The problem of the conception of R2P in the 2009 report is that it isboth over-inclusive and under-inclusive. R2P was formulated looseand flexible enough to facilitate that merger. It provided a call foraction and a duty to react. It mandates, as Jennifer Welsh put it, thatmass atrocity situations be identified, and that action be taken, but it‘‘does not specify precisely what kind of action is appropriate’’.78

This construction may offer some benefits in relation to the dis-course on intervention, since it protects the integrity of the concept incases where it is abusively invoked to justify a specific responsescheme to a crisis (e.g., military intervention). But it also comes withdownsides. It packaged a wide range of responses under a commonumbrella, without paying tribute to their individual functions anddistinctions.79

The report embraced a broader trend within the UN system toconceptualize human rights bodies, humanitarian action and insti-tutions of criminal justice as part of a common response strategy toatrocity crimes. It presents diverse actors, such as fact-finding mis-sions, human rights bodies, peace operations and internationalcriminal courts and tribunals as members of a ‘‘happy’’ community ofinstitutions that act in concert for the common goal of preventing andending mass atrocities. It assumed that they serve as conflict resolu-tion mechanisms.

This approach has triggered different types of criticisms. In thehuman rights community, R2P has been criticized for its selectivityand under-inclusion. The crimes trigger strengthens the alert functionof human rights mechanisms. But it poses constraints from a conflict

Footnote 77 continuedJustice’ (2008) 2 IJTJ 294; P. de Greiff and R. Duthie (eds.), Transitional Justice and

Development: Making the Connection (New York: Social Science Research Council,June 2009).

78 See J. Welsh, �Where R2P Goes From Here’, 21 August 2013, http://opencanada.org/features/the-think-tank/interviews/where-r2p-goes-from-here/.

79 For a similar claim in relation to complementarity in the ICC context, see F.

Megret, �Too Much of a Good Thing? Implementation and the Uses of Comple-mentarity’, in Stahn and El Zeidy (eds.), (n 19 above), 361, at 364.

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resolution perspective. It makes R2P ‘‘thin’’80, rather than ‘‘narrow’’and ‘‘deep’’.81 The crime trigger associates protection needs mostlywith political violence. It privileges specific human rights protections,i.e. the right to life and bodily integrity, and civil and political rights,more broadly, to the detriment of socio-economic rights (e.g., wel-fare, health).82 It makes it harder to invoke the loss of sovereignty asa shield in cases of human rights abuses that do not amount toatrocity crimes. It is reductionist since it reduces the complexity ofsocial realities into the rudimentary language of criminal law.Moreover, it poses some ideological challenges that hamper en-forcement. The reference to crimes and the link to State failure attachparticular stigmas to the application of R2P that impede its accep-tance by defiant States and its use as a non-coercive tool. 83

In the international criminal justice community, R2P is criticizedfor its over-inclusiveness as to the functions of justice. The crime-based definition of R2P has reinforced the trend of human rightsbodies to make findings on international criminal violations. Inparticular, fact-findings mechanisms have increasingly focused on‘‘atrocity crimes’’ over the past decade.84 This has led to divergentapproaches towards the application of substantive internationalcriminal law85 and concerns about due process standards (e.g., in

80 See D. Chandler �R2P or Not R2P? More Statebuilding, Less Responsibility’

(2010) 2 Global Responsibility to Protect 161, 165 (‘‘This liberal institutional ap-proach understands mass atrocities outside of a concern with economic and socialrelations, focusing merely on the institutional structures which are held to shape the

behaviour of individuals’’).81 See Report of the Secretary-General, Implementing the Responsibility to Pro-

tect, (n 45 above), para. 10 (c).82 See generally E. Schmid, Taking Economic, Social and Cultural Rights Seriously

in International Criminal Law (Cambridge: Cambridge University Press, 2015).83 See Chandler, (n 80 above), 164 (arguing that R2P presents ‘‘weak institutional

capacity of some sovereign states’’ as a problem).84 See L. van den Herik, �An Inquiry into the Role of Commissions of Inquiry in

International Law: Navigating the Tensions between Fact-Finding and Applicationof International Law’ (2014) 13 Chinese Journal of International Law 507.

85 See e.g., L. van den Herik and C. Harwood, �Sharing the Law: The Appeal ofInternational Criminal Law for International Commissions of Inquiry’, GrotiusCentre Working Paper No. 2014/016-ICL, at http://papers.ssrn.com/sol3/papers.

cfm?abstract_id=2387554; T. Rodenhauser, �Progressive Development of Interna-tional Human Rights Law: The Reports of the Independent International Com-mission of Inquiry on the Syrian Arab Republic’, EJIL Talk, http://www.ejiltalk.org/

progressive-development-of-international-human-rights-law-the-reports-of-the-independent-international-commission-of-inquiry-on-the-syrian-arab-republic/.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

relation to naming of individual suspects) and investigativemethodologies (e.g., protection of witnesses and victims) of humanrights fact-finders.86

More fundamentally, the 2009 report has embraced a ‘‘fit-all’’conception of justice that is increasingly under challenge. It treatedinternational criminal justice as a tool of conflict resolution,87 with-out engaging with the roles and limits of justice institutions.88 Thereport failed to recognize that goals of justice do not necessarilycoincide with the goals of with humanitarian action. It assumed thatinternational criminal justice institutions have a preventive function,without engaging with the conditions under what such effects mayoccur.89 It took it for granted that a greater managerial role of in-ternational courts and tribunals is conducive to the goals of pro-tecting R2P. It failed to examine whether such an approach isconducive to the goals of justice. R2P and international criminaljustice are not ‘‘always mutually reinforcing’’.90 The report paid in-sufficient attention to the fundamental question whether and to whatextent a greater operational role of international courts and tribunalsunder R2P may be reconciled with prerequisites of judicial and

86 D. Saxon, �Purpose and Legitimacy in International Fact-Finding Bodies’, inM. Bergsmo (ed.), Quality Contril in Fact-Finding (Torkel Opsahl Academic

EPublisher, 2013) 211, 222–224; T. Boutruche, �Credible Fact-Finding and Allega-tions of International Humanitarian Law Violations: Challenges in Theory andPractice’ (2011) 16 Journal of Conflict and SecurityLaw 108.

87 For the recognition of a pragmatic link, see K. A. Rodman, �Justice as a Dia-logue Between Law and Politics’ (2014) 12 JICJ 437, 469 (‘‘pragmatism requires theProsecutor to construe her discretion as part of a dialogue, both with stakeholders

likely to be affected by criminal proceedings, and with the international actors in-volved in conflict resolution, peace-building, and humanitarian activities’’).

88 For a careful appraisal of the functions of international criminal justice, see R.Cryer, H. Friman, D. Robinsin and E. Wilmshurst, An Introduction to InternationalCriminal Law and Procedure, 3rd ed. (Cambridge: Cambridge University Press, 2014)28–42; M. Damaska, �What Is the Point of International Criminal Justice’ (2008) 83

Chicago-Kent Law Review 329; S. Dana, �The Limits of Judicial Idealism: Should theInternational Criminal Court Engage with Consequentialist Aspirations? (2014) 3Penn State Journal of Law and International Affairs 30.

89 See generally P. Akhavan, �Can International Criminal Justice Prevent FutureAtrocities? (2001) 95 LJIL 7; J. Ku and J. Nzelibe, �Do International Criminal

Tribunals Deter or Exacerbate Humanitarian Atrocities?’ (2006) 84 WashingtonUniversity Law Review 777; L. Vinjamuri, �Deterrence, Democracy, and the Pursuitof International Justice’ (2010) 24 Ethics & International Affairs 191.

90 See also Roland Paris, �R2P v. ICC’, 24 June 2011, at http://opencanada.org/features/r2p-v-icc/.

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prosecutorial independence, as well as standards of fairness and im-partiality of judicial behavior. No attempt was made to improve in-teraction between existing institutions, i.e. to work towards a betterconnection between international criminal justice institutions andother response mechanisms. The Secretary General urged the Per-manent Members to ‘‘refrain from employing or threatening to em-ploy the veto in situations of manifest failure to meet obligationsrelating to the responsibility to protect’’.91 But the crucial workingrelationship between the Security Council and the ICC remainedlargely unaddressed.

This may explain why there is gap between narrative and reality.R2P has been invoked on numerous occasions in the context of hu-man rights fact-finding. Several fact-finding missions have concludedthat the concerned state failed to exercise its responsibility to protectits population (Syria, Kenya)92 and that the international communityhas a duty to act (Syria, North Korea).93 Commissions of Inquiryhave recommended international criminal accountability responses,such as referral by the Security Council to the ICC (Darfur, Guinea,Syria, North Korea),94 exercise of universal jurisdiction (High-level

91 Report of the Secretary-General, Implementing the Responsibility to Protect, (n45 above), para. 61.

92 For instance, the International Commission of Inquiry on Syria (�Syria Com-mission’) held that the Syrian Government had ‘‘manifestly failed in its responsibilityto protect the population’’. See Report of the Independent International Commis-

sion of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/19/69, 22 February2012, para. 126. An OHCHR fact-finding mission in Kenya in 2008 reported that theState had failed to meet its responsibility to protect its population. See Report from

OHCHR Fact-finding Mission to Kenya, 6–28 February 2008, at 12.93 For instance, the 2014 report of the North Korea Commission reported that

‘‘[t]he international community must accept its responsibility to protect the people of

the [North Korea] from crimes against humanity, because the Government […] hasmanifestly failed to do so.’’ Report of the Commission of Inquiry on Human Rightsin the Democratic People’s Republic of Korea, UN Doc. A/HRC/25/63, 7 February

2014, para. 86. In 2013, the Syria Commission underlined the responsibility of theinternational community ‘‘in the search for peace and the commitment to interna-tional human rights and humanitarian law.’’ Report of the Independent Interna-

tional Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/22/59, 5 February 2013, para. 171.

94 Report of the International Commission of Inquiry on Darfur, 25 January 2005,

paras. 571–589 and 647, at http://www.unrol.org/files/com_inq_darfur.pdf; Reportof the International Commission of Inquiry Mandated to Establish the Facts andCircumstances of the Events of 28 September 2009 in Guinea, UN Doc. S/2009/693,

18 December 2009, para. 266; Syria Commission, (n 92 above), para. 180(b); NorthKorea Commission, (n 92 above), para. 94(a).

MARITAL STRESS OR GROUNDS FOR DIVORCE?

Mission on Darfur, Goldstone Commission)95 or the establishment ofad hoc international tribunals.

International justice institutions have kept a critical distance inofficial discourse. They remained reluctant to apply R2P as a legalconcept. The International Court of Justice had the opportunity torefer to R2P in the Genocide cases,96 but refrained from invoking it ina notable fashion in jurisprudence. A similar picture prevails in theICC context. The concept has been applied incrementally. It wasmentioned by the ICC Prosecutor97 and delegates (e.g., Sweden, Ja-pan) in statements.98 But it has thus far not played a key role injudicial decisions or motions, although it could have been invoked incontexts such as Kenya, Libya or Darfur.

The lack of reference to R2P may be partly explained by doubtsabout the normative quality of R2P.99 But the causes of problems liedeeper.

IV DISCOURSE AND RELATIONSHIP PROBLEMS

The crisis in the relationship between R2P and international criminaljustice is grounded in discourse problems and false premises of in-teraction. The normative appeal of R2P as a concept has been

95 Report of the High-Level Mission on the Situation of Human Rights in Darfur,UN Doc. A/HRC/4/80, 9 March 2007, para. 77(i); Report of the UN Fact-FindingMission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009, para.

1975.96 ICJ, Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ Reports

2007 43; Application of the Convention on the Prevention and Punishment of the Crimeof Genocide (Croatia v. Serbia), 3 February 2015, at http://www.icj-cij.org/docket/files/118/18422.pdf.

97 See Luis Moreno Ocampo, Keynote Address, 17 November 2006, Chicago,Illinois, at http://r2pcoalition.org/content/view/61/86/, arguing that there is ‘‘com-mon ground’’ between R2P and the ICC, ‘‘because the scheme envisioned by the

Responsibility to Protect where each individual State has the primary responsibilityto protect its populations from genocide, war crimes, ethnic cleansing and crimesagainst humanity, including the prevention of such crimes, and the idea that the

international community will only step in when a State is failing to do is very muchthe scheme retained in Rome for the International Criminal Court, the same concept,including the gravity threshold retained for the Responsibility to Protect is also close

to our own legal standards under the Rome Statute’’.98 See M. Contarino and M. Negron-Gonzales, �The International Criminal

Court’, in Zyberi, (n 1 above), 411, 413.99 In UN documents, R2P is understood as a �concept’, �principle,’ or �standard’.

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overshadowed by its use as a tool of intervention. Instead ofbenefiting from the invocation of sovereignty as responsibility, in-ternational criminal justice has been affected by some of the verysame critiques that have been voiced against R2P.

There are three fundamental factors that have compromised theinterplay between international criminal justice and R2P: (i) anoverambitious link between consequentialist approaches to justiceand human security agendas, (ii) declining faith in the nexus of in-ternational criminal justice and R2P to collective security, and (iii)problems related to the use of punitive rationales as a justification forintervention.

4.1 Misalignment Between Justice and Human Security Agendas

Some of the common ground that has traditionally been assumed inrelation to the interplay between R2P and international criminaljustice has faded. The alliance between the two concepts was based onthe assumption that it is useful to combine justice and human securityagendas. The branding of R2P as conflict resolution mechanism andthe reference to Courts as ‘‘tools’’ in this box have provided an in-centive to portray international criminal court and tribunals as hu-man security actors.

This conception is tempting for international criminal justice. Ithelps to put accountability dilemmas on the radar on the short-runand may secure some quick-wins. But it has visible downsides from asystemic and long-term perspective. It has transformed courts fromjudicial entities into managerial actors and exposed to them to somethe same dilemmas that ‘‘outside’’ actors face when proclaiming toprotect ‘‘the rights of others’’.

These dilemmas have become particularly apparent in the contextof the first practice of the ICC. Much of the rhetoric of early ICCaction has revolved around security agendas and consequentialistconsiderations. Prosecutorial strategy has overemphasized the role ofthe ICC in crisis management. Some of the strategies were primarilyguided at effecting societal and political transformation through thevehicle of justice. This has reversed cause and effect. Human securitymay be well a consequence or side-effect of justice intervention. Butchoices related to the investigation and prosecution of crimes shouldnot be primarily guided by human security concerns.

The first practice of the ICC has turned this logic around.Speculation about calculated political and societal outcomes havebeen at the forefront of strategies and decision-making practice. In

MARITAL STRESS OR GROUNDS FOR DIVORCE?

the context of Uganda,100 ICC action was visibly guided at improvingsecurity conditions, caused through the moves of the LRA.101 TheProsecutor portrayed the role of the ICC as security agent and‘‘savior’’ of the interests of Ugandan society. Some of the first draftpress releases of the Office of the Prosecutor were directed to the‘‘people of Uganda’’. Arrests warrants were geared at insulating theLRA leadership, in order to cause internal division and dismantleLRA structures. But this strategy failed to produce the desired con-sequences. When arrest and prosecution strategies did not bear fruit,provision about information about declining crime rates in Ugandabecame a focal point of submissions. After the failure of Juba peacetalks, the situation lay virtually dormant until the capture of DominicOnwgen.102

In Kenya, speculation about election politics became a primeobjective of justice intervention.103 The engagement of the ICC was

100 See generally T. Allen, Trial Justice: The International Criminal Court and the

Lord’s Resistance Army (London: Zed Books, 2006); M. Wierda and M. Otim,�Courts, Conflict and Complementarity in Uganda, in Stahn and El Zeidy, (n 19above) 1155–1178; P. Clark, ’Chasing Cases: The ICC and the Politics of State

Referral in the Democratic Republic of Congo and Uganda’, in Stahn and El Zeidy(eds.), (n 19 above) 1180–1202. For a discussion, see also Nouwen, (n 9 above), at56–59.

101 For statistics on �quantitative analysis of the deterrence impact’, see J. Mendez,�The Importance of Justice in Securing Peace’, 18 May 2010, at http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/The%20Importance%20of%20Justice%

20in%20Securing%20Peace.pdf.102 Statement of the Prosecutor of the International Criminal Court, Fatou Ben-

souda, following the surrender and transfer of top LRA Commander Dominic

Ongwen, 21 January 2015, at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-21-01-2015.aspx (arguing that ‘‘DominicOngwen’s transfer brings us one step closer to ending the LRA’s reign of terror in the

African Great Lakes region’’). For a discussion, see A. Whiting, �Is a Plea Agreementfor Dominic Ongwen a Good Idea?’, 10 February 2015, at http://postconflictjustice.com/is-a-plea-agreement-for-dominic-ongwen-a-good-idea/.

103 See generally S. Brown, �Lessons Learned and Forgotten: The InternationalCommunity and Electoral Conflict Management in Kenya’, in D. Gillies (ed.)Elections in Dangerous Places: Democracyand the Paradoxes of Peacebuilding

(Montreal: McGill-Queen’s University, 2011) 127–143; C. Alai and N. Mue, �Com-plementarity and the Impact of the Rome Statute and the International CriminalCourt in Kenya’, in Stahn and El Zeidy (eds.), (n 19 above) 1222–1233; S. Hohn,

�New Start or False Start? The ICC and Electoral Violence in Kenya’, (2014) 45Development and Change 565–588.

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partly driven by the goal to send a message that election violence isimpermissible on the African continent, and elsewhere in the world.Charges were partly geared at ‘‘rebuild[ing] Kenya on new founda-tions’’104 and ‘‘provid[ing] an example on how to do justice, protectvictims and overcome massive conflicts’’.105 As Luis Moreno-O-campo admitted later openly, ICC action was guided by the ambitionto transform ‘‘transform Kenya into Sweden’’.106 ICC strategies andcases were chosen on that premise, making a link between the 2007electoral violence and prevention of violence in subsequent elec-tions.107 The reliance on calculated effects was then used as a tech-nique to validate ICC intervention.108 The peaceful holding of the2013 elections was branded as success of ICC action. This strategytriggered vast public mobilization (‘‘Don’t be vague, go to the TheHague’). But it masked problems relating to evidence gathering andactual delivery of justice in the Courtroom. Moreover, the calculusinherent in the ICC claim remained fragile. It sidelined the fact thatpolitical violence in Kenya had origins in longer term disputes overland resources and access to politics which cannot be solved throughcriminal charges.109

A similar rationale was used in the context of Ivory Coast. InNovember 2004, Juan Mendez, former UN Advisor on the Preven-tion of Genocide, made a statement that public incitement to violencewould come within the ambit of ICC jurisdiction, which was brandedas ‘‘anecdotal evidence that the threat of prosecution in some cases

104 See OTP Statement, �Press Conference by the Prosecutor of the International

Criminal Court, Luis Moreno Ocampo, Thursday November 26, 2009, Nairobi andThe Hague’, at 1, at http://www.icc-cpi.int/NR/rdonlyres/A2B59665-397C-4C47-9CFA-18958E6AB28C/281313/LMOINTROstatement26112009_2_2.pdf.

105 Ibid., at 2.106 See Interview, 22 January 2014, at http://www.rnw.nl/africa/article/ocampo-

exclusive.107 See OTP Statement, (n 104 above), at 3 (‘‘It has been two years since the post-

election violence in Kenya. In two years, another election is planned. The world is

watching Kenya and this Court. We cannot fail the women, men and children ofKenya’’).

108 See International Crisis Group, �Kenya: Impact of the ICC Proceedings’,Policy Brief, Africa Briefing N�84 Nairobi/Brussels, 9 January 2012, athttp://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/B084%20Kenya%20——%20Impact%20of%20the%20ICC%20Proceedings.pdf.

109 See Hohn, (n 103 above), at 572.

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can stay the hand of the perpetrators of mass atrocities’’.110 In De-cember 2010, the ICC Prosecutor invoked the 2003 declaration ofacceptance of jurisdiction in December 2010 in order to curtail vio-lence in presidential elections. Deputy Prosecutor Fatou Bensoudaissued a statement that illustrates the human security oriented ra-tionale of ICC scrutiny. It reads like a UN press release: ‘‘I urgesupporters of the candidates and security forces to refrain fromviolence’’.111 This strategy is appealing from a rhetorical point ofview. But it has something ambivalent. It reduces the complexity ofsocial reality by suggesting that electoral violence can be reduced tofights of individuals over political interests.112

Speculation about political outcomes further influenced the timingof ICC decision-making processes. In the Columbian situation, theProsecutor deferred its decision to act under Article 15, in order toawait the outcome of peace negotiations and the operation of thePeace and Justice Law.113 In the Palestine context, the Office tied itsdecision on the (non-)exercise of jurisdiction following the 2009declaration of acceptance of jurisdiction under Article 12 (3) to UNmoves in the General Assembly,114 which prompted criticism as to

110 See J. Mendez, �Justice and Prevention’, in Stahn and El Zeidy (eds.), (n 19

above), 33, at 47.111 See Statement by the Deputy Prosecutor of the ICC on situation in Cote

d’Ivoire, 2 December 2010.112 Hohn, (n 103 above), at 582.113 For a critique, see Seils, (n 69 above), at 1011 (‘‘That patience, five years after

writing to Colombia in March 2005, has not been vindicated in terms of encouraginggenuine national proceedings. Nor has it been vindicated in terms of deterring se-

rious crimes’’).114 In the Update on the �Situation in Palestine, issued on 3 April 2012, i.e. almost

three years after the Palestinian declaration, the OTP stated that ‘‘competence for

determining the term �State’ within the meaning of article 12 rests, in the first in-stance, with the United Nations Secretary General who, in case of doubt, will deferto the guidance of General Assembly’’. See OTP, Situation in Palestine, 3 April 2012,

at http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf.

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externalization of authority and undue delay.115 In both contexts, thisrisk-management strategy came at some cost in relation to the per-ception of the impartiality and effectiveness of justice. In the Libyancontext, the ICC acted much more quickly than in other situations. Itdecided within a couple of days to initiate investigations.116 This wasvisibly geared at de-legitimizing the Gaddafi-regime. After the fall ofthe regime, the Prosecutor took a U-turn. The OTP adopted a hands-off approach, and disengaged from investigations and prosecution,because of faith in the capacity of the Libyan people.117

One of the lessons of the first decade of the ICC is that it is risky torely on calculated political effects to motivate prosecutorial choices.Placing human security concerns at the center of justice-related de-cision-making processes is likely to result in disappointment andfailure. It might ultimately lead to a mission creep of internationalcriminal justice. Viewing international criminal justice as a project tobuild responsible sovereignty is overambitious. It reverses priorities.International criminal justice may certainly entail the incapacitationof political leaders, and might improve security or societal conditions.But such effects should not be turned into the primary agenda. Theyinevitably expose international criminal justice to critiques anddilemmas of intervention and imperialism.

115 For critical assessment, see J. Dugard, �Palestine and the International Crim-inal Court Institutional Failure or Bias?’ (2013) 11 JICJ 563. On 16 January, apreliminary examination was opened, more than two years after the adoption of

Resolution 67/19 by the General Assembly which granted Palestine �non-memberobserver State’ status in the UN on 29 November 2012. See OTP Press Release, �TheProsecutor of the International Criminal Court, Fatou Bensouda, opens a pre-liminary examination of the situation in Palestine’ , ICC-OTP-20150116-PR1083, 16

January 2015, at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx.

116 On 26 February 2011, the UN Security Council referred the situation on Libyato the ICC. On 28 February 2011, the Prosecutor opened the preliminary ex-amination. See OTP, �Statement by the Office of the Prosecutor on situation in

Libya’, 28 February 2011, at http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/statementlybia28022011.aspx.

117 For an analysis, see C. Stahn, �Libya, the ICC and Complementarity: A Testfor ’shared responsibility’ (2012) 10 JICJ 325–351.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

4.2 Breakdown of Faith in the Nexus to Collective Security

A second strand of problems arises in relation to the role of theSecurity Council. International justice and R2P were created basedon faith in the virtues of collective security. There was initial trustthat a constructive �marriage’ between justice and R2P could unfoldunder the umbrella of UN peace maintenance. Security Council ac-tion was seen as an ideal type of collective response under R2P118 andas an opportunity to overcome the limitations of the ICC.119 But thisconfidence has waned. Both, international criminal justice and R2Phave suffered from the alliance with Security Council practice. TheICC and R2P become instruments of the UN Security Council and tosome extent a drop box for problems.120 This has damaged theirrelationship.

International criminal justice was developed on the premise thatthe cause of justice is strengthened by the link to collective security.The Security Council was heralded as guardian of the ‘‘sanctity ofinternational justice’’ and humanitarianism. Both ideals have faded.

The first referrals of the Security Council to the ICC were asso-ciated with great hopes and expectations, and a certain sense of tri-umph. There was a willingness to accept a certain sacrifice. But theyturned partly into poisoned gifts. The way in which have been han-dled have left a sense of bitterness and disillusion.

As Louise Arbour, former Chief Prosecutor of the ICTY, hasnoted in her fundamental critique of internationalism:

Two referrals by the Security Council to the ICC, in the cases of Darfur and Libya,have done little to enhance the standing and credibility of the ICC, let alone con-tribute to peace and reconciliation in their respective regions … Security Council

referrals expand the reach of accountability to countries that have chosen not to beparties to the Rome Statute that established the ICC. But they do so at a cost thatany justice system should find difficult to bear … Security Council referrals … expose

118 See para. 139 of the World Summit Outcome Document.119 In the drafting history of the Statute, only some states (Pakistan, India, United

Arab Emirates and Yemen) expressed criticism in relation to the power of the Se-

curity Council to refer situations to the ICC. See W. A. Schabas, The InternationalCriminal Court: A Commentary on the Rome Statute (Oxford: Oxford UniversityPress, 2010) 295–296.

120 For an assessment, see J. Trahan, �The Relationship between the InternationalCriminal Court and the UN Security Council: Parameters and Best Practices’ (2013)24 CLF 417; D. Ruiz Verduzco, �The UN Security Council and the International

Criminal Court’, Chatham House International Law Meeting Summary, 16 March2012, at http://www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf.

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the Court to charges of politicisation, while providing the Court with no compen-satory benefits such as additional financial, political or operational support.

[I]n the end, Council referrals may in fact underscore the Court’s impotence ratherthan enhance its alleged deterrent effect, given that in Darfur Security Council

backing has achieved so little, while in Libya there is a sense in some quarters that theCourt withdrew from a contentious arena leaving the indictees to be tried in ajudicial system under severe stress.121

Problems exist on several levels. The jurisdictional exemptions in ex-isting Council resolutions,122 and the shift of the financial burden ofreferrals on the ICC despite the contrary assumption in Article 115(b) of the Statute,123 limit the scope of investigations and the selectionof cases in the context of ICC referrals. This exposes the Court toappearances of dependence or biaswhich affect the independence of theCourt.124 When the ICC required Council support to enforce warrantsof arrest or deal with non-compliance by States with requests for co-operation, it has been largely left in the dark.125 The Council notori-ously failed to follow up on situations referred to the Court. Difficultieswere reinforcedby lackof transparencyor explanationof key aspects ofdecisions, such as immunity exceptions or the use of Article 16.126

121 See L. Arbour, �Doctrines Derailed?: Internationalism’s Uncertain Future’, athttp://www.crisisgroup.org/en/publication-type/speeches/2013/arbour-doctrines-

derailed-internationalism-s-uncertain-future.aspx.122 See operative paragraph 6 of Resolution 1593 (2095) and 1970 (2011). For a

discussion, see R. Cryer, ’Sudan, Resolution 1593, and International Criminal Jus-tice’ (2006) 19 LJIL 195; Trahan, (n 120 above).

123 Article 115 (b) makes reference to ‘‘funds provided by the United Nations … in

particular in relation to the expenses incurred due to referrals by the SecurityCouncil’’.

124 On critiques by Arab and Latin and South American States against the role ofthe Council, see Schabas, (n 118 above). Similar reservations have been voiced in thecontext of the role of the Council in relation to the crime of aggression. As a result, itis made clear that a finding of the Council shall have no prejudicial effect on the ICC.

125 See e.g.. most recently ICC, PTC I, Prosecutor v. Saif Al-Islam Gaddafi, ICC-01/11-01/11, Decision on the non-compliance by Libya with requests for cooperation

by the Court and referring the matter to the United Nations Security Council, 10December 2014, para. 34 (‘‘the Chamber is of the view that it is appropriate to makea finding of non-compliance by Libya with the Court’s requests for cooperation at

issue and refer the matter to the Security Council under article 87(7) of the Statutefor it to consider any possible measure aimed at achieving Libya’s compliance withits outstanding obligations vis-a-vis the Court’’).

126 For an early illustration, see C. Stahn, The ambiguities of Security CouncilResolution 1422 (2002) (2003) 14 EJIL 85–104.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

As a result of these factors, there are serious doubts as to whether thecouplingof collective security and international justice has beenmutuallyreinforcing in the ICC context. Some of these concerns have been openlyaddressed by ICC Prosecutor Fatou Bensouda in December 2014. Shenoted in her statement on the situation in Darfur to the Council:

It is becoming increasingly difficult for me to appear before you to update you whenall I am doing is repeating the same things I have said over and over again, most ofwhich are well known to this Council. …Women and girls continue to bear the brunt

of sustained attacks on innocent civilians. But this Council is yet to be spurred intoaction. Victims of rapes are asking themselves how many more women should bebrutally attacked for this Council to appreciate the magnitude of their plight …

In the almost ten years that my Office has been reporting to this Council, there hasnever been a strategic recommendation provided to my Office, neither have therebeen any discussions resulting in concrete solutions for the problems we face in the

Darfur situation. We find ourselves in a stalemate that can only embolden perpe-trators to continue their brutality

Faced with an environment where my Office’s limited resources for investigations are

already overstretched, and given this Council’s lack of foresight on what shouldhappen in Darfur, I am left with no choice but to hibernate investigative activities inDarfur as I shift resources to other urgent cases, especially those in which trial isapproaching. It should thus be clear to this Council that unless there is a change of

attitude and approach to Darfur in the near future, there shall continue to be little ornothing to report to you for the foreseeable future.127

Similar doubts exist in relation to the relationship between the Counciland R2P. R2P was developed with the purpose to strengthen collectivesecurity and curtail unilateral use of force. This ambition has sufferedfrom serious drawbacks. R2P has been declared ‘‘dead’’ after Syria.128

But the problems may not lie so much in the under-utilization of R2Pin relation to enforcement action, but in its instrumentalization.

From the perspective of systemic failure, Libya is in many ways aworse scenario for R2P than Syria. In the Libyan context, R2P wasused in connection with the principle of the �protection of civilians’ tojustify regime change.129 This logic turned the protection rationale of

127 See Statement to the United Nations Security Council on the Situation in

Darfur, pursuant to UNSCR 1593 (2005), 12 December 2014, paras. 2–4, athttp://www.icc-cpi.int/iccdocs/otp/stmt-20threport-darfur.pdf.

128 See n 7 above.129 For a discussion, see M. Payandeh, �The UN, Military Intervention, and Re-

gime Change in Libya’ (2012) 52 Virginia Journal of International Law 355; F.

K. Abiew and N. Gal-Or, �Libya, Intervention and Responsibility: Sawn of a newEra?, in C. Stahn and H. Melber (eds.), Peace Diplomacy, Global Justice and Inter-

CARSTEN STAHN42

R2P on its head. It used a humanitarian label and an agenda ofprotection to extend the limits of the use of force. It then ignoredprotection needs in the aftermath of military intervention. This be-havior had a spin-over effect on international justice. It created theimpression that the ICC is the ‘‘prolonged arm’’ of the SecurityCouncil and that its action is ‘‘intervention by other means.’’ 130 Inthis sense, it damaged both: international criminal justice and R2P.

4.3 Use of Criminal Motives as a Justification for Intervention

A third threat for the interplay between R2P and internationalcriminal justice is use of criminal rationales as a pretext for inter-vention.131 This may be an unintended consequence of the mergerbetween justice and intervention agendas. It has detrimental effectson both concepts.

This tendency became acutely apparent in the Syrian crisis.132 Thediscourse on the use of force mixed arguments of humanitarianprotection, in line with R2P, and rationales of criminal justice inorder to extend option for a military response. Humanitarianism wasinvoked as a title to justify action that is punitive in nature, outsidethe realm of self-defence133 or collective security. Use of force was

Footnote 129 continued

national Agency: Rethinking Human Security and Ethics in the Spirit of DagHammarskjold (Cambridge: Cambridge University Press, 2014) 536–556.

130 See Stahn, (n 117 above), and C. Stahn, �Why the ICC Should Be Cautious to

Use the Islamic State to Get Out of Africa: Part 1’, EJIL Talk, athttp://www.ejiltalk.org/why-the-icc-should-be-cautious-to-use-the-islamic-state-to-get-out-of-africa-part-1/.

131 On narratives in intervention, see A. Orford, Reading Humanitarian Interven-tion (Cambridge: Cambridge University Press, 2003), C. Borgen, �The Language ofLaw and the Practice of Politics: Great Powers and the Rhetoric of Self-Determi-

nation in the Cases of Kosovo and South Ossetia’ (2009) 10 Chicago Journal ofInternational Law 1.

132 For a full discussion, see C. Stahn, �Syria and the Semantics of Intervention,Aggression and Punishment (2013) 11 JICJ 955, 957–960; C. Stahn, �Between Law-breaking and Law-making: Syria, Humanitarian Intervention and ‘‘What the Law

Ought to Be’’’ (2014) 19 Journal of Conflict and Security Law 25–48.133 The use of chemical weapons marked a potential threat to international peace

and security, but ‘‘no armed attack’’ under Article 51 UN Charter against any of the

powers contemplating military intervention. There were also no direct effects onneighbouring countries which might justify the exercise of collective self-defence.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

considered as an instrument to remove the threat of chemicalweapons and to achieve retribution.134

The argument for intervention reversed methodologies. Instead ofjustifying calls for the use of international criminal justice, criminalnotions and labels were used to justify recourse to force. This rep-resents an attack on foundations of the international legal order anddiscredits R2P. R2P was not meant be a punitive concept. It is cen-tered on the idea of protecting civilian populations, rather thansanctioning moral outrage, horror and fear caused through collectivepunishment.135 Its development into a punitive tool, i.e. a ‘‘respon-sibility to punish’’ State action or inaction, stands partly in contrastto its humanitarian rationale and would increase fears of instru-mentalization that have haunted the concept since its inception.136

This approach also weakens international criminal justice. Con-siderations of guilt and punishment have been associated with theresponsibility of individuals, rather than State responsibility.137 In-corporating arguments of punishment into intervention has detri-mental effects. It collectives guilt and uses armed force as a short-cutto justice.

V END OF A LOVE AFFAIR AND THE ETHICS OF CARE

What implications do these developments have for the interplay be-tween R2P and international criminal justice? Is it time to end thelove affair?

In family law, a marriage without interaction may be a ground fordivorce. This raises the questions whether a greater separation isdesirable. A closer look at the status quo suggests that there is a needfor both, greater distance to preserve autonomy, and a better con-

134 For a critique, see J. McMahan, �Aggression and Punishment’, in L. May (ed.),War: Essays in Political Philosophy (Cambridge: Cambridge University Press, 2012)

67, at 84 (‘‘Aggressive war is just only when its aims are defensive … just war can bepunitive only when the aim of punishment is defence or deterrence. Just war is neverretributive’’).

135 On the prohibition of collective punishment, see S. Darcy, �Prosecuting theWar Crime of Collective Punishment’ (2010) 8 JICJ 29, S. Darcy, Collective Re-sponsibility and Accountability under International Law (Ardsley, NY: Transnational

Publishers, 2007) 7–185.136 See Mamdani, (n 5 above) (R2P as ‘‘right to punish’’).137 See generally B. I. Bonafe, The Relationship Between State and Individual Re-

sponsibility for International Crimes (Leiden: Brill, 2009).

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nection in certain specific areas. A number of targeted considerationsmay help rethink the existing impasse.

First, too much emphasis may have been put since the outset onthe strategic objective to make R2P operational as a concept withinexisting institutional clusters. The focus on implementation has de-tracted from the foundations of the concept, namely its capacity tostrengthen the responsibility-related aspects of sovereignty. It is keyto understand international criminal justice and R2P not as particularinstitutional models,138 but as normative commitments. There is aneed for a more careful return to the foundations. R2P offers analternative reading to the �social contract’ theory in relation to thejustification of public authority.139 It provides a means to inquiremore deeply into the social fabric and limitations of consent, in-cluding its representation and underlying conditions.140 This nor-mative foundation needs to be clarified better before furtherinstitutionalization or �mainstreaming’. Otherwise R2P will remain ahollow shell.

Second, there is a need for a certain degree of modesty, in relationto both R2P and international criminal justice. In existing discourse(e.g., SG reports, prosecutorial strategy), it is too often assumed thatR2P or justice intervention can solve root causes of conflict throughinstitutional action or impact on rational cost/benefit analysis of in-dividuals.141 This assumption requires careful scrutiny. It tends tooverestimate the role of international institutions in crisis. Interna-tional institutions cannot be expected to create justice or security.They might at best mitigate insecurity and injustice. Lasting condi-

138 Chandler, (n 80 above), at 165. See also the critique by Nouwen, (n 9 above), at64 (‘‘the concepts correctly assume that states sometimes fail in fulfilling their re-sponsibility to prosecute or to protect, they do not provide for the scenario that the

�international community’ is equally, if not more, unwilling or unable’’).139 See Dworkin, (n 3 above), at 10.140 See N. Krisch, ’The Decay of Consent: International Law in an Age of Global

Public Goods’ (2014) 108 AJIL 1.141 On alternatives to rationale choice in economic analysis, see World Bank,

World Development Report 2015, Mind, Society and Behaviour (Washington: In-ternational Bank for Reconstruction and Development/The World Bank, 2015). Thereport stresses the ‘‘human factor’’ in decision-making, arguing that ‘‘[i]ndividuals

are not calculating automatons. Rather, people are malleable and emotional actorswhose decision making is influenced by contextual cues, local social networks andsocial norms, and shared mental models. All of these play a role in determining what

individuals perceive as desirable, possible, or even ‘‘thinkable’’ for their lives’’. Ibid.,at 3.

MARITAL STRESS OR GROUNDS FOR DIVORCE?

tions can at best be created by choices that are made domestically orlocally.142 The application of R2P and international criminal justicestrategies requires therefore further acts of translation. Moreover,what Nouwen qualified as the ‘‘complementarity paradox’’ also ap-plies to the relationship between international criminal justice andR2P more broadly: In circumstances where the State is unable, the‘‘international community’’ may often be ‘‘even more, unwilling orunable’’ to remedy flaws.143

Third, it is unhelpful to seek artificial complementarities betweeninternational criminal justice and R2P. There is need for more carefuldistinction between the humanitarian telos of R2P and the goals ofinternational criminal justice. Rationales of protecting �others’ do notalways coincide with the specific and individual-centered goals ofcriminal law. This difference between traditions has been aptly de-scribed by Jean Pictet, the main architect of the Geneva Conventionsand its Additional Protocol, in his 1979 Commentary to the �Fun-damental Principles of the Red Cross’:

[W]hile justice rewards each person according to his rights, charity gives to each

according to his suffering. To judge means to separate the good from the bad, thejust from the unjust; to measure the degrees of individual responsibility. Charity onthe other hand has nothing whatever to do with this kind of justice … It is more

interested in providing people with what they need than it is with punishing them.144

The goals of international criminal justice should not be inflated.145

International criminal justice is not directly meant to serve as conflictresolution mechanisms, nor is it necessarily a suitable instrument tofacilitate the transition to a new political system, as claimed in somecontexts (e.g., Kenya). It might introduce a new international ap-proach to reduce violence or facilitate security or societal conditions.Such effects may well be a consequence of action. But they should notbe turned into primary causes of action, since international criminal

142 For such a claim in the transitional justice context, see R. Shaw and L. Waldorf(eds.), Localizing Transitional Justice: Interventions and Priorities after Mass Violence(Stanford: Stanford University Press, 2010).

143 See Nouwen, (n 9 above), at 64.144 J. Pictet, Commentary on the Fundamental Principles of the Red Cross (Inter-

national Federation of Red Cross and Red Crescent Societies, 1979) 22–23, athttps://www.ifrc.org/PageFiles/40669/Pictet%20Commentary.pdf.

145 C. Stahn, �Between ‘‘Faith’’ and ‘‘Facts’’: By What Standards Should WeAssess International Criminal Justice’ (2012) 26 LJIL 251–282.

CARSTEN STAHN46

justice lacks the means to realize them. Claiming otherwise mightplace ‘‘the cart before the horse’’.

Fourth, the use of the atrocity crime trigger as a motivation orjustification of human security action deserves further consideration.The crime label retains a certain pragmatic appeal because it providesidentifiable thresholds. But it also has certain negative side effects thatneed to be addressed. Merging the semantics and concepts of criminallaw into the working methods of human rights bodies or the justifi-cation of the use of force does not necessarily entail progress in re-lation to human security. It might be more helpful to develop a set ofindicators for violations146 and reliable methods to ascertain then, inorder to provide specific guidance for humanitarian or human rightsaction.

Fifth, it is dangerous to portray international criminal justice in-stitutions as enforcement tools of R2P. This functionalist logic isover-simplistic. It offers a wrong conceptualization of the relationshipbetween international criminal justice and R2P. It blurs the distinc-tion between international criminal justice and human rights instru-ments, or might facilitate its use as an instrument of �war’ by othermeans. International criminal justice requires thus a certain degree ofautonomy. In future practice, it might be more helpful to identify anddevelop certain areas, in which the two concepts positively comple-ment each other. Three of them are discussed briefly here: (i) the alertfunction of international criminal justice, (ii) its expressive value and(iii) compliance.

Monitoring capacity and atrocity alert is a first area where theinterplay between R2P and international criminal justice could bedeveloped. Over past years, preliminary examinations have turnedinto one of the most important aspect of ICC proceedings. ICCscrutiny has become an important factor in shaping dynamics ofconflict.147 In the drafting of the Statute, this aspect has only receivedminimal attention. One key challenge is to professionalize the con-ception and methodology of preliminary examinations. ICC pro-

146 For a first initiative, see United Nations Office on Genocide Prevention and theResponsibility to Protect, �Framework of Analysis for Atrocity Crimes: A Tool forPrevention’, July 2014, at http://www.un.org/en/preventgenocide/adviser/pdf/frame

work%20of%20analysis%20for%20atrocity%20crimes_en.pdf.147 See T. Unger and M. Wierda, �Pursuing Justice in Ongoing Conflict: A Dis-

cussion of Current Practice’, in K. Ambos et al. (eds.), Building a Future on Peace and

Justice: Studies in Transitional Justice, Peace and Development (Heidelberg/Berlin:Springer, 2009) 263.

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ceedings might provide greater clarity and transparency on the con-text of violations that may give rise to R2P or serve as a criticalcompariter. At the same time, additional precaution needs to betaken to ensure that the absence of ICC action is not perceived as animplicit endorsement of conduct or as an indication of lack of gravityunder R2P.

The expressive function of international criminal justice148 is asecond area where mutual engagement may be strengthened. Judg-ments and legal decisions have an important signal effect, by identi-fying rules and principles and �do’s and don’ts’. The World SummitOutcome Document formally entrusts the General Assembly with thetask to ‘‘continue consideration of the responsibility to protect’’.149

But in the absence of further regulatory action, jurisprudence mayturn into one of the most important factors clarifying the rough edgesof the R2P doctrine. In certain respects, such as the obligations ofarmed groups and state-like and other organizations,150 it is moreprogressive151 than R2P which largely ignored the responsibilities ofnon-state actors through the specific focus on responsibilities of thestate. International criminal courts and tribunals, in turn, could relymore effectively on the normative consensus underlying the obliga-tion-related side of R2P, in order to highlight positive duties (e.g.,protection duties, access to humanitarian relief) or arbitrary denial ofstate consent.152

148 See e.g., R. D. Sloane, �The Expressive Capacity of International Punishment:The Limits of the National Analogy and the Potential of International CriminalLaw’ (2007) 43 Stanford Journal of International Law 40. M. Drumbl, Atrocity,

Punishment and International Law (Cambridge: Cambridge University Press, 2007)173–180.

149 See para. 139 of the World Summit Outcome Document.150 For discussion, see A. Clapham, �Human Rights Obligations of Non-state

Actors in Conflict Situations’ (2006) 88 IRRC 491–523; W. A. Schabas, �Punishment

of Non-State Actors in Non-International Armed Conflict’ (2003) 26 Fordham In-ternational Law Journal 907–933; G. Werle and B. Burghardt, �Do Crimes AgainstHumanity Require Participation of a State or a �State-like’ Organization?’ (2012) 10

JICJ 1151.151 See S. Darcy and J. Powderly (eds.), Judicial Creativity at the International

Criminal Tribunals (Oxford: Oxford University Press, 2010).152 On state consent and humanitarian assistance, see C. Ryngaert, �Humanitarian

Assistance and the Conundrum of Consent: A Legal Perspective’ (2013) 5 Amster-

dam Law Forum 5–19; R. Barber, �Facilitating Humanitarian Assistance in Inter-national Humanitarian and Human Rights Law’ (2009) 91 IRRC 386.

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Compliance is a third area where synergies could be used in a moreeffective way. R2P could be invoked more systematically to drawattention to (i) non-cooperation by States in relation to arrest, (ii)need for follow-up by the Council or (iii) to put pressure on states toallow access to territory for investigations and prosecutions for corecrimes. Interaction with the Security Council could be strengthenedthrough adoption of a protocol, or the identification of general pa-rameters, which would guide Council’s actions in cases in which thereare strong indications that the crimes under the Rome Statute arebeing committed and no domestic action is taken.153 In the UNsystem, the Universal Periodic Review might be used as a venue toexamine issues relating to implementation of specific statutory pro-visions, in order to promote effective domestic accountability foratrocity crimes.154

Sixth, both international criminal justice and R2P require furtherrefinement in relation to agency. Protagonists of both projects assertauthority on behalf of ’others’. They speak on their behalf and vestthem with certain subjectivities, such as the label of �victims’. This hasopened them to criticism.155 In R2P discourse, victims are frequentlytreated as homogenous entities (populations, civilians), without dif-ferentiation among interests or giving them any active voice. In theaftermath of responses, they are blended out of the picture. Inter-national criminal justice pays greater attention to the voice of victimsin proceedings. But the argument that agency creates duties of careremains underdeveloped.156 There is no clear exit strategy for theaftermath of investigations and prosecutions. Concerns of witnessesand victims often fall off the radar screen after testimony. Manyvictims are left out of the discourse due to the restricted scope of cases

153 The Council Working Group on Tribunals could serve as a forum for dialogueon follow-up of referrals, including issues of non-cooperation. See also Trahan, (n120 above).

154 For a survey of the status quo, see CICC, �Seeking Universality of the RomeStatute of the International Criminal Court Through the United Nations HumanRights’, 9 May 2014, at http://www.iccnow.org/documents/ICC_at_the_UPR_19th_

session_(28April-9May2014)_Outcome.pdf.155 Megret, (n 9 above), at 49.156 See C. Barker, �Who cares?: Dag Hammarskjold and the Limits of Responsi-

bility in International Law’ in Stahn and Melber, (n 129 above) 508–535.

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and collective representation.157 This contradiction needs to be ad-dressed. The more R2P and international criminal justice assertpower on behalf of �others’, the more they need to strengthen the dutyof care.

Open Access This article is distributed under the terms of theCreative Commons Attribution License which permits any use, dis-tribution, and reproduction in any medium, provided the originalauthor(s) and the source are credited.

157 See S. Kendall and S. Nouwen, �Representational Practices at the International

Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2014) 76Law and Contemporary Problems 235–262.

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